The great disclosure debate: surviving a perfect storm

Rebuilding confidence in disclosure in criminal cases: a consideration of the recent failures and how they can be avoided in future

As early as July 2017, a joint report by the Inspectorates
of the Crown Prosecution Service and the Constabulary highlighted a number of systemic failings in relation to the handling and review of unused material in ‘volume’ cases in the crown court. Pointing out that similar concerns
had already been raised in previous reports, the inspectors expressed particular concern about the following:

poor scheduling by the police: the recording of details of both sensitive and non-sensitive material;

rare revelations by police to prosecutors of material that either undermined the prosecution case or assisted the defence;

police and prosecutors failing to manage ongoing disclosure; and

chaotic scenes outside courtrooms as a result of last minute (often unauthorised) disclosure between counsel, due to a failure to grip disclosure issues earlier.

By November 2017, the CPS reported that it had made improvements to both casework and staffing levels; particularly in relation to cases involving rape and serious sexual offences – where it had increased its number of specialist prosecutors
by 43% since 2015. However, this assurance did not allay ongoing concerns about disclosure practices. In December 2018, the Attorney General (AG), announced a review of the efficiency and effectiveness of disclosure in the criminal justice system
(CJS).

Four days after that announcement, the Liam Allan case hit the headlines. As a result the CPS announced a review of all live rape and serious sexual assault cases (resulting in 47 cases being discontinued due to disclosure issues). There followed
the publication of a National Disclosure Improvement Plan (NDIP), a collaboration between the CPS and the police. The
House of Commons Justice Committee announced that it would conduct its own inquiry into disclosure to feed into the AG’s review. The findings of the review called for a large-scale change of culture within the CJS in relation to the handling
and review of unused material. It also identified the need for urgent training for CPS staff and police officers as a priority.

Decreased resources v increased workload

While the sudden whirlwind of activity around disclosure was triggered by disclosure failings in a series of highly publicised cases, criminal practitioners and policy makers had been voicing concerns about the ever increasing risks to the integrity
of the CJS for a number of years. Therefore, in our opinion, the recent disclosure failures cannot be viewed in isolation and need to be considered in the context of the current overall situation.

The cuts in government funding of the CJS, implemented year-on-year since 2010 (which will result in a 40% cut in real terms between 2011 and 2020), are well-documented. There are a number of examples where these cuts could have directly impacted
on casework, including the handling of unused material. For example, as part of measures taken to reduce costs, the CPS, the police, and other CJS agencies significantly reduced their staffing levels through voluntary early severance schemes.
It is not difficult to see how these kind of measures risk leaving the system exposed (at least temporarily) due to an increase in the workload of the remaining (much reduced) cadre of staff. Indeed, the new Director of Public Prosecutions, Max
Hill QC, has recently acknowledged that the CPS cannot sustain any further budgetary cuts. On the defence side, as a result of changes to how cases are funded under a reducing legal aid budget, solicitors and barristers often find themselves undertaking
time-consuming work reviewing unused material for which there is no remuneration.

Meanwhile, the volume of unused material across the majority of criminal cases has been growing at an unprecedented level. Both the AG and Justice Committee acknowledged that investigators and lawyers now face unprecedented challenges in dealing with
the amount of digital material that now forms part of criminal investigations. Unused material can be voluminous in even run-of-the mill cases. This places further strains on those working within an already resource-depleted CJS. In our view,
we risk finding ourselves in a similar position in future if the recommendations of the AG’s review are not accompanied by sustained levels of investment in the wider CJS.

Future-proofing disclosure

The following measures would be a good start:

The method of calculating defence remuneration in publicly funded cases for reading and dealing with unused material should be reviewed.

A commitment to providing an ongoing training programme for CPS and police staff in relation to all aspects of disclosure. Following the recent decision of the Court of Appeal in R v E [2018] EWCA 2436 (Crim), disclosure officers would benefit
from training on when the contents of a complainant’s mobile phone and social-media communications constitute a ‘reasonable line of enquiry’ in sexual assault cases.

Sustained investment and innovation in technology both in the wider CJS and the work of the new Technology Group set up under the NDIP. The AG acknowledged that it has become impossible, particularly in high-end cases, to expect billions of pieces
of information to be read by a human being alone. Consideration needs to be given to the deployment of technological solutions, such as predictive coding and artificial intelligence.

While none of these solutions are cost-neutral, they are perhaps unavoidable if trust and confidence in the CJS is to be maintained in the future. Any initial expenditure is likely to be saved many times over in the long term, due to fewer cases collapsing
close to, or during, a trial. In the final analysis – what price can be put on justice?

The Liam Allan case: what went wrong?

Liam Allan was charged with multiple counts of rape and sexual assault. A download of the complainant’s phone was taken at the time her allegation was made. Liam and the complainant had previously been in a relationship.

The police investigated the download but no material was brought to the attention of the reviewing inspector prior to the case being sent to the CPS for a charging decision.

The CPS approved charge relying on the Police’s assurance that there was nothing relevant in the download.

There was no mention of the download on the disclosure schedule.

The defence statement asked for any text messages between the parties during and after their relationship and whether there had been any investigation of social media material. The CPS said that it was not in possession of any relevant text material
(apart from two pages of Snapchat messages) and that it was not proportionate to carry out any further social media enquiries.

Shortly before the trial, prosecution counsel requested that the police check the download to see if there were ‘recent complaint’ messages between the complainant and a friend. These were obtained by the police from the download and
the CPS uploaded them on its case-management system as evidence only days before trial.

The late acknowledgement that the download contained relevant material, led to a defence request on day one of the trial for disclosure of the download. The Police maintained that the material in the download had been reviewed and it wasn’t
disclosable.

Following a defence application for further disclosure, prosecuting counsel agreed that the downloaded material should be obtained and considered.

On day three, judge allowed a further request by defence for an overnight adjournment to consider the entirety of the download.

On day four, judge acceded to a defence application for the jury to be discharged.

On review of its case, the CPS acknowledged there was no realistic prospect of conviction in light of the material from the download and no evidence was offered on all counts.

CPS review concluded that the disk containing the download had not been withheld deliberately, but disclosure failings had resulted from error, lack of challenge of the police handling of the unused material by its reviewing lawyers, and lack
of knowledge.

Julia Smart is a criminal defence barrister at Furnival Chambers. She was named Barrister of the Year at The Lawyer Awards 2018 for her work as defence counsel for Liam Allan. Julia sits on the committee of the Association of Women Barristers and takes silk in March.

Lynne Townley is a barrister and lecturer on the BPTC at City Law School, University of London. She was an advocacy manager and Crown Advocate at the Crown Prosecution Service from 2003-2015. Lynne is the Chair of the Association of Women Barristers.

Criminal defence barrister at Furnival Chambers. Julia was named Barrister of the Year at The Lawyer Awards 2018 for her work as defence counsel for Liam Allan. Julia sits on the committee of the Association of Women Barristers.

The great disclosure debate: surviving a perfect storm

As early as July 2017, a joint report by the Inspectorates
of the Crown Prosecution Service and the Constabulary highlighted a number of systemic failings in relation to the handling and review of unused material in ‘volume’ cases in the crown court. Pointing out that similar concerns
had already been raised in previous reports, the inspectors expressed particular concern about the following:

poor scheduling by the police: the recording of details of both sensitive and non-sensitive material;

rare revelations by police to prosecutors of material that either undermined the prosecution case or assisted the defence;

police and prosecutors failing to manage ongoing disclosure; and

chaotic scenes outside courtrooms as a result of last minute (often unauthorised) disclosure between counsel, due to a failure to grip disclosure issues earlier.

By November 2017, the CPS reported that it had made improvements to both casework and staffing levels; particularly in relation to cases involving rape and serious sexual offences – where it had increased its number of specialist prosecutors
by 43% since 2015. However, this assurance did not allay ongoing concerns about disclosure practices. In December 2018, the Attorney General (AG), announced a review of the efficiency and effectiveness of disclosure in the criminal justice system
(CJS).

Four days after that announcement, the Liam Allan case hit the headlines. As a result the CPS announced a review of all live rape and serious sexual assault cases (resulting in 47 cases being discontinued due to disclosure issues). There followed
the publication of a National Disclosure Improvement Plan (NDIP), a collaboration between the CPS and the police. The
House of Commons Justice Committee announced that it would conduct its own inquiry into disclosure to feed into the AG’s review. The findings of the review called for a large-scale change of culture within the CJS in relation to the handling
and review of unused material. It also identified the need for urgent training for CPS staff and police officers as a priority.

Decreased resources v increased workload

While the sudden whirlwind of activity around disclosure was triggered by disclosure failings in a series of highly publicised cases, criminal practitioners and policy makers had been voicing concerns about the ever increasing risks to the integrity
of the CJS for a number of years. Therefore, in our opinion, the recent disclosure failures cannot be viewed in isolation and need to be considered in the context of the current overall situation.

The cuts in government funding of the CJS, implemented year-on-year since 2010 (which will result in a 40% cut in real terms between 2011 and 2020), are well-documented. There are a number of examples where these cuts could have directly impacted
on casework, including the handling of unused material. For example, as part of measures taken to reduce costs, the CPS, the police, and other CJS agencies significantly reduced their staffing levels through voluntary early severance schemes.
It is not difficult to see how these kind of measures risk leaving the system exposed (at least temporarily) due to an increase in the workload of the remaining (much reduced) cadre of staff. Indeed, the new Director of Public Prosecutions, Max
Hill QC, has recently acknowledged that the CPS cannot sustain any further budgetary cuts. On the defence side, as a result of changes to how cases are funded under a reducing legal aid budget, solicitors and barristers often find themselves undertaking
time-consuming work reviewing unused material for which there is no remuneration.

Meanwhile, the volume of unused material across the majority of criminal cases has been growing at an unprecedented level. Both the AG and Justice Committee acknowledged that investigators and lawyers now face unprecedented challenges in dealing with
the amount of digital material that now forms part of criminal investigations. Unused material can be voluminous in even run-of-the mill cases. This places further strains on those working within an already resource-depleted CJS. In our view,
we risk finding ourselves in a similar position in future if the recommendations of the AG’s review are not accompanied by sustained levels of investment in the wider CJS.

Future-proofing disclosure

The following measures would be a good start:

The method of calculating defence remuneration in publicly funded cases for reading and dealing with unused material should be reviewed.

A commitment to providing an ongoing training programme for CPS and police staff in relation to all aspects of disclosure. Following the recent decision of the Court of Appeal in R v E [2018] EWCA 2436 (Crim), disclosure officers would benefit
from training on when the contents of a complainant’s mobile phone and social-media communications constitute a ‘reasonable line of enquiry’ in sexual assault cases.

Sustained investment and innovation in technology both in the wider CJS and the work of the new Technology Group set up under the NDIP. The AG acknowledged that it has become impossible, particularly in high-end cases, to expect billions of pieces
of information to be read by a human being alone. Consideration needs to be given to the deployment of technological solutions, such as predictive coding and artificial intelligence.

While none of these solutions are cost-neutral, they are perhaps unavoidable if trust and confidence in the CJS is to be maintained in the future. Any initial expenditure is likely to be saved many times over in the long term, due to fewer cases collapsing
close to, or during, a trial. In the final analysis – what price can be put on justice?

The Liam Allan case: what went wrong?

Liam Allan was charged with multiple counts of rape and sexual assault. A download of the complainant’s phone was taken at the time her allegation was made. Liam and the complainant had previously been in a relationship.

The police investigated the download but no material was brought to the attention of the reviewing inspector prior to the case being sent to the CPS for a charging decision.

The CPS approved charge relying on the Police’s assurance that there was nothing relevant in the download.

There was no mention of the download on the disclosure schedule.

The defence statement asked for any text messages between the parties during and after their relationship and whether there had been any investigation of social media material. The CPS said that it was not in possession of any relevant text material
(apart from two pages of Snapchat messages) and that it was not proportionate to carry out any further social media enquiries.

Shortly before the trial, prosecution counsel requested that the police check the download to see if there were ‘recent complaint’ messages between the complainant and a friend. These were obtained by the police from the download and
the CPS uploaded them on its case-management system as evidence only days before trial.

The late acknowledgement that the download contained relevant material, led to a defence request on day one of the trial for disclosure of the download. The Police maintained that the material in the download had been reviewed and it wasn’t
disclosable.

Following a defence application for further disclosure, prosecuting counsel agreed that the downloaded material should be obtained and considered.

On day three, judge allowed a further request by defence for an overnight adjournment to consider the entirety of the download.

On day four, judge acceded to a defence application for the jury to be discharged.

On review of its case, the CPS acknowledged there was no realistic prospect of conviction in light of the material from the download and no evidence was offered on all counts.

CPS review concluded that the disk containing the download had not been withheld deliberately, but disclosure failings had resulted from error, lack of challenge of the police handling of the unused material by its reviewing lawyers, and lack
of knowledge.

Julia Smart is a criminal defence barrister at Furnival Chambers. She was named Barrister of the Year at The Lawyer Awards 2018 for her work as defence counsel for Liam Allan. Julia sits on the committee of the Association of Women Barristers and takes silk in March.

Lynne Townley is a barrister and lecturer on the BPTC at City Law School, University of London. She was an advocacy manager and Crown Advocate at the Crown Prosecution Service from 2003-2015. Lynne is the Chair of the Association of Women Barristers.